Aug 31 1819 Carlisle Assizes (Bamber v. Baxter)...#13 - Cumberland and Westmorland Newspaper Transcriptions

Aug 31 1819 Carlisle Assizes (Bamber v. Baxter)...#13

The Times, Tuesday, Aug 31, 1819; pg. 3; Issue 10712; col A

                                CUMBERLAND ASSIZES
                    CARLISLE, WEDNESDAY, AUGUST 25.     [continued]

               BAMBER V. BAXTER. - RIGHT OF COMMON.

Mr. TINDALL stated the pleadings.

Mr. SCARLETT opened the case to the Jury. This was a feigned issue, in order to
ascertain the extent of the plaintiff's right in the common of Ainstaple, for
the enclosure of which an act had been passed in the last session of Parliament.
Mrs. BAMBER, the plaintiff, was of the AGLIONBY family - a family of great
antiquity in this county - and, as heiress of that family, possessed an estate
called the Nunnery. To prove the title to this estate, he should produce a grant
by William Rufus, son of William the Conqueror; at least, he should exhibit a
grant made in the 20th year of Edward IV., repeating the grant of King William
Rufus. The original grant had been made, as the title still implied, to Black
Nuns of the order of St. Benedict, who were to pray for the salvation of his
Majesty's soul, and of the souls of his progenitors and ancestors. Under this
title Mrs. BAMBER possessed the Dairy or Nunnery, the Mill, and Broadwood. The
grant of those places distinctly gave a right of common in the common of
Ainstaple. But the AGLIONBY family and the Earl of CARLISLE, who also had a
right of common in Ainstaple-common, had many years ago agreed to make several
allotments from the common. The allotment to the AGLIONBY family was called
Cross-houses. When the common came this year to be divided, the commissioners
allowed the plaintiff's right for the Cross-houses, but refused the right for
the Nunnery, the Mill, and Broadwood. For each of these farms Mrs. BAMBER
claimed a right of common in Ainstaple, and this was the ground of her appeal
from the commissioners. Besides the grant which he had mentioned, he should
produce evidence to them of the actual use of this right.

Mr. Richard ADDISON produced an office copy, from the Tower of London, of the
grant of Edward IV., which rehearsed the letters patent of William Rufus, Duke
of Normandy and King of England, giving certain lands to Black Nuns, in honour
of Christ and the blessed Virgin, and for the salvation of souls. The grant made
mention of the term Carrogate, which Mr. ADDISON said was 100 acres, and Mr.
Sergeant HULLOCK said was only 30. The grant gave a right to common of
Ainstapleth.

Mr. Thomas HUTTON produced from Mrs. BAMBER's muniments, a grant by Edward VI.
to William GREYME (GRAHAM) of the priory of Amethwaite, to be enjoyed by him as
fully and freely as by the late prioress or any of her predecessors. The witness
proved that the priory of Amethwaite was the nunnery in question. He also
produced a deed of agreement between the Earl of CARLISLE and Mr. AGLIONBY,
dated 28th October, 1698, respecting allotments from Ainstaple-common. It
contained the expression, "the Manor of Amethwaite, commonly called Nunnery."

Eleven witnesses were then examined, and cross-examined, upon the exercise of
the right of common by Mr. AGLIONBY, Mrs. BAMBER, and their tenants, as
connected with each of the three places mentioned.

Mr. Sergeant HULLOCK addressed the Jury for the defendant. - What right had
William Rufus to grant this right of common? But if he had such a right, there
was a certain king, whom we called Henry VIII., who had resumed all grants of
this kind. If Edward VI. regranted the lands, the regrant was not such as
reconveyed the right of common. Conscious of the insufficiency of the grant to
establish the right, his learned friend had endeavoured to splice it up with
evidence; but the evidence was too loose, too vague, and of a character too
undetermined to satisfy them. Upon such loose, ragged, inconclusive evidence,
they would never find a right of common.

His Lordship recapitulated the evidence, and stated it to be strong proof of a
right of common, when sheep and cattle were frequently driven into the common,
and no challenge was ever made by the undisputed commoners.

Verdict for the plaintiff on all the issues.

Mr. AGLIONBY was with Messrs. SCARLETT and TINDALL in this case, for the
plaintiff.

Messrs. LAMB (M.P. for Westminster) and VERNON were for the defendant, with Mr.
Sergeant HULLOCK.